Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 1662 (BOM)

Sanjay Fondu Bhandare v. Narayan Babuso Palyekar

2013-08-21

U.V.BAKRE

body2013
JUDGMENT : This appeal is directed against the Judgment and Award dated 22/03/2007 passed by the learned Presiding Officer, Motor Accident Claims Tribunal, Panaji in Claim Petition No. 92/1999. 2. The parties shall hereinafter be referred to in the manner in which their names appear in the cause title of the said Claim Petition. 3. The claimant had filed the said petition under section 166 of the Motor Vehicles Act, 1988 (“the Act”, for short) for grant of total compensation of Rs. 50,000/- on account of injuries sustained by him in a motor vehicular accident. 4. The case of the claimant, in short, was as follows: On 10/7/1998, at about 6.00 a.m while he was proceeding from Merces towards Panaji on his scooter bearing no. GA-01/A-5740, the respondent no.1 was driving the trax jeep bearing registration number GA-02/C-7098 ahead of the scooter and suddenly the respondent no.1 took a right turn and in that process dashed against the scooter of the claimant thereby causing injuries resulting in permanent disability. The claimant stated that the jeep was driven by respondent no.1 in a rash and negligent manner. 5. Vide his written statement, the respondent no.1, firstly alleged that he and the claimant had entered into an agreement dated 01/08/1998 and in terms of the same, the respondent no.1 made necessary payments to the claimant in full and final settlement towards alleged injuries and other damages. The respondent no.1, therefore, alleged that the claim petition deserved to be dismissed. The respondent no.1, otherwise, denied that the accident was caused due to his rash and negligent driving. He specifically stated that on the date of the accident at about 6 a.m. he had come to drop some of his relatives at the K.T.C bus stand at Panaji and had stopped his vehicle at the K.T.C bus stand and at that time the street lights were on though it was dark. He further stated that there were also few street cattle sitting in front of his vehicle and at that time the claimant drove his scooter in a rash and negligent manner and gave dash on the rear side of the said stationary trax jeep thereby causing the accident and damages to the vehicle of respondent no.1. The respondent no.1 further stated that at the relevant time the front and rear parking lights of his vehicle were on. The respondent no.1 further stated that at the relevant time the front and rear parking lights of his vehicle were on. The respondent no.1 further stated that he gave first aid to the claimant and was about to take him to Goa Medical College hospital after turning his vehicle but at that time one ambulance was passing by that side and he took the claimant by the said ambulance to the hospital and gave all help and co-operation. He stated that the agreement and declaration dated 01/08/1998 was signed without admitting the fault or negligence of respondent no.1, as a matter of amicable settlement. 6. The respondent no. 2, in its written statement, alleged that it had already transferred the said tempo trax in the name of respondent no.1 on 13/3/1998 and had issued the sale letter dated 13/3/1998 along with original certificate of registration to the respondent no.1 and had also delivered the vehicle and had signed and delivered the “Report of Transfer of ownership of a motor vehicle” in Form No. 30 dated 13/3/1998 and had obtained signature of the respondent no.1 on the same. The respondent no.1, therefore, claimed that it was not liable to pay any compensation. 7. The learned Tribunal framed issues as per the rival contentions of the parties. The claimant examined himself as CW.1 and Dr. Carlos Barreto as CW.2. The respondent no. 1 examined himself as RW.1 and the Respondent no. 2 examined its Manager and duly constituted attorney, namely, Mr. Savio Mascarenhas as RW.2. 8. Upon consideration of the entire evidence on record, the learned Tribunal held that the claimant had proved that the respondent no. 1 drove the said trax jeep in a rash and negligent manner and gave dash to the scooter of the claimant and caused grievous injuries which however, did not result in permanent disability. Towards actual loss of salary for three and half months at the rate of Rs. 4770/- per month, compensation of Rs. 16,670/- was granted to the claimant. The claimant was further held to be entitled to compensation of Rs. 2000/- towards transport expenses and Rs.1500/- towards other miscellaneous expenditure. Towards pain and suffering, the claimant was held to be entitled to the compensation of Rs..5000/-. The total compensation was calculated at Rs. 25,170/-. Since it was found that respondent no.1 had paid to the claimant an amount of Rs. 2000/- towards transport expenses and Rs.1500/- towards other miscellaneous expenditure. Towards pain and suffering, the claimant was held to be entitled to the compensation of Rs..5000/-. The total compensation was calculated at Rs. 25,170/-. Since it was found that respondent no.1 had paid to the claimant an amount of Rs. 2300/- towards the compensation on account of injuries sustained by the claimant, the said amount was adjusted and the claimant was held to be entitled for compensation of Rs. 22,870/- , which was rounded up to Rs. 23,000/-. It was held that the respondent no. 2 had already transferred the vehicle in favour of respondent no.1 as on the date of accident and as such, it was not liable to pay compensation. Consequently, respondent no.1 was directed to pay to the claimant the sum of Rs..23,000/- along with interest at the rate of 9% per annum from the date of filing of the petition till the date of payment of entire amount. 9. Aggrieved by the impugned judgment and award, the respondent no.1 has filed the present appeal. 10. Heard Mr. Netravalkar, the learned counsel appearing on behalf of the respondent no. 1 and Mr. Lobo, the learned counsel appearing on behalf of the claimant. 11. I have gone through the entire record and proceedings and considered the submissions made by the parties. 12. At the outset, the learned counsel appearing on behalf of the respondent no.1 stated that though in the memo of appeal, the respondent no. 1 has alleged that the learned Tribunal ought to have held that the respondent no. 2 was the registered owner of the trax jeep and the compensation ought to have been directed to be paid by respondent no. 2, however, the respondent no.1 is not pressing for the said ground and concedes that respondent no.1 was the driver and owner of the said vehicle as on the date of the accident. 13. The first point that arises for determination is whether the respondent no.1 drove the trax jeep in a rash and negligent manner or whether the claimant himself drove his scooter rashly and negligently. 14. In this regard, CW.1 who is the claimant deposed that on 10/7/1998 at 6.05 a.m, he was coming from Merces towards Panaji city on his scooter bearing no. 14. In this regard, CW.1 who is the claimant deposed that on 10/7/1998 at 6.05 a.m, he was coming from Merces towards Panaji city on his scooter bearing no. GA-01/A-5740 and when he reached near KTC bus stand, the trax jeep bearing registration number GA-02/C-7098 driven by the respondent no.1 and proceeding ahead of his scooter suddenly without showing any signal took a right turn to the circle across the right of his way as result of which his scooter rammed against the right rear tyre of the jeep. CW.1 stated that as result of the accident he suffered injuries. As against the above, DW.1, the respondent no. 1, in his Affidavit-in-Evidence stated that he had stopped the said vehicle at K.T.C bus stand more towards the left side of the main road proceeding to Panaji and that at that time all street lights were on and he had kept the parking lights of the vehicle on and that the claimant drove his scooter at a very fast speed from Merces towards Panaji in a rash and negligent manner and gave dash on the rear side of the said stationary trax jeep causing the accident. The claimant (CW.1) produced on record the Panchanama of the Scene of Accident and Sketch as Exhibit 23-colly. The learned counsel for both the parties have placed reliance on this panchanama and the sketch. In the circumstances above, the objection of learned counsel for the respondent no. 1 that since the said panchanama and sketch are not proved through the panch witness and Investigating Officer, the same cannot be looked into, has no substance. From the sketch of the Scene of Accident, it is revealed that the front left side tyre of the trax jeep was at the distance of 6.60 metres from the extreme left side edge of the road whereas the left rear tyre of the same was at the distance of 7.80 metres from the left side edge of the road. It was submitted by the learned counsel for the respondent no. 1 that the position as is shown on the sketch is not the same which was existing at the time of the accident but the same was after the vehicle was moved by the respondent no. 1. It was submitted by the learned counsel for the respondent no. 1 that the position as is shown on the sketch is not the same which was existing at the time of the accident but the same was after the vehicle was moved by the respondent no. 1. He submitted that the respondent no.1 had moved the vehicle in order to take the claimant to the hospital but since an ambulance had come there, he parked the vehicle at the place as shown in the sketch. The above contention of the learned Counsel for respondent no.1 is contrary to the pleadings and evidence on record. Neither in the written statement it is averred that respondent no.1 had moved his vehicle after the accident nor it is stated by him in his Affidavit-In-Evidence that he had moved the vehicle after the accident. What is stated is that the respondent no.1 was about to take the claimant to the hospital and for that purpose he was in the process of turning the vehicle at which time an ambulance came. Therefore, the respondent no.1 had not moved the vehicle at all. Thus, the submission of learned Counsel for the respondent no.1 that the trax jeep was parked on the extreme left hand side of the road is not acceptable. A perusal of the panchanama reveals that the lights of the vehicle were not on. Therefore, the falsity of the respondent no.1 is proved. In my view, the learned Tribunal has rightly placed reliance on the evidence of CW.1, the claimant and has rightly held that the accident was caused while the tempo trax jeep had taken a right turn and the accident occurred due to the rash and negligent driving of the trax jeep by respondent no.1. 15. Learned counsel for respondent no.1 pointed out that the according to the claimant, the right side of the jeep had dashed against the scooter. He invited my attention to the panchanama which is part of Exhibit 23-colly, wherein the damages mentioned to the Vespa scooter are all on the front side whereas the damages to the trax jeep are all on the rear side. He submitted that there were absolutely no damages on the right side of the said vehicle of respondent no.1. He invited my attention to the panchanama which is part of Exhibit 23-colly, wherein the damages mentioned to the Vespa scooter are all on the front side whereas the damages to the trax jeep are all on the rear side. He submitted that there were absolutely no damages on the right side of the said vehicle of respondent no.1. According to him, therefore, the contention of the claimant that the respondent no.1 had given dash of the right side of the vehicle to the scooter is not believable. In this regard it should be kept in mind that the standard of proof required in claim petition is not proof beyond doubt but is preponderance of probabilities. In my view, considering the entire evidence on record, as a whole, rashness and negligence of the respondent no. 1 is proved. Therefore, the first point for determination gets answered in the affirmative. 16. The next point is whether the compensation awarded by the Tribunal is on a higher side or whether it is just and reasonable. 17. The claimant (CW.1) is a Government servant being a driver working for the High Court of Bombay at Goa. He has produced the salary certificate issued by the Senior Superintendent of the High Court as Exhibit 21 which shows that the net salary of the claimant was Rs. 4770/-. He has also produced on record the order dated 30/7/1998 which proves that the claimant was granted commuted leave for 23 days w.e.f. 10/7/1998 to 1/8/1998 and Earned Leave for 7 days from 2/8/1998 to 8/8/1998 with permission to suffix 9/8/1998 being Sunday. He has produced the order dated 6/10/1998 which shows that the claimant was granted Earned Leave for 22 days w.e.f. 8/9/1998 to 29/9/1998. He has produced the order dated 2/9/1998 which proves that the claimant had availed Earned Leave for 30 days w.e.f 9/8/1998 to 7/9/1998. Lastly, the claimant has produced the order dated 15/4/1999 of the Additional Registrar of the High Court of Bombay showing that the claimant was granted Commuted leave for 5 days from 19/3/1999 to 23/3/1999 and Earned Leave for 17 days from 24/3/1999 to 9/4/1999 with permission to suffix 10th and 11th April 1999 being Second Saturday and Sunday, respectively. 18. CW.2, Dr. Carlos Barreto deposed that the claimant was admitted on 10/7/1998 and was discharged on 17/7/1998. 18. CW.2, Dr. Carlos Barreto deposed that the claimant was admitted on 10/7/1998 and was discharged on 17/7/1998. According to him, approximately it takes three months time for this type of injury to heal after which the patient is required to undergo physiotherapy. CW.2 stated that the patient can resume his duties on an average within 3 to 6 months form the date of injury. 19. It was contended by the learned counsel appearing on behalf of respondent no.1 that a false statement is made by the claimant in paragraph 11 of the application under section 166 of the Act to the effect that the claimant had sustained fracture on the right leg as also on the hand and in paragraph 23 has added that he also suffered number of other injuries. There may be slight exaggeration. However, the fact remains that the claimant had sustained a fracture to the right patella which is part of the right leg and injurers to both the hands. The evidence of CW.2 reveals that he had examined the claimant and that the claimant had sustained fracture of the right patella for which the claimant was treated at Goa Medical College hospital. According to CW.2, the claimant had fully recovered from the injury and according to the ALIMCO (Artificial Limb Manufacturing corporation of India) scales, he did not have any residual permanent disability. The certificate issued by CW. 2 is at Exhibit 37 which proves that the claimant had sustained fracture of right patella. The claimant has produced the Hurt Certificate as Exhibit 19 which reveals that he had sustained abrasions to the right knee, right elbow and left elbow. 20. In view of the above evidence on record, it is duly proved that the claimant was earning net salary of Rs.4770/- and on account of the injuries sustained in the said accident, he was forced to go on leave, commuted or otherwise, for about three and half months. If the claimant had not taken the said leave he would have become entitled for Leave Encasement. Therefore, the claimant is entitled to Rs. 16,670/- towards actual loss of salary. No doubt, no document has been produced by the claimant regarding expenditure towards transportation and towards other miscellaneous expenses. The learned Tribunal has only granted Rs. 2000/-towards transport expenses and Rs. Therefore, the claimant is entitled to Rs. 16,670/- towards actual loss of salary. No doubt, no document has been produced by the claimant regarding expenditure towards transportation and towards other miscellaneous expenses. The learned Tribunal has only granted Rs. 2000/-towards transport expenses and Rs. 1500/- towards other miscellaneous expenditure since the claimant had remained in the hospital for about a week. He is bound to spend towards miscellaneous expenses and also towards transport. The O.P.D. card produced by the claimant as Exhibit 20-colly reveals that the claimant had to attend the O.P.D. Of Goa Medical College for several days. He has also produced the case summary and discharge card which is part of Exhibit 30. colly. The compensation granted towards transportation expenses and miscellaneous expenditure is therefore just and reasonable and cannot at all be held to be on higher side. The amount of Rs. .5000/-paid as compensation towards pain and suffering is also reasonable. 21. No amount has been paid for any permanent disability. It should be kept in mind that the claimant has not been granted any compensation towards medical expenses. Again he has also not been granted any compensation towards damages to the scooter. Besides, the above, the amount of Rs. 2,300/-paid by the respondent no.1 to the claimant under the said agreement dated 1/8/1998 (Exhibit44) has been deducted. In the circumstances above, the compensation awarded at Rs. 23,000/- is just and reasonable and cannot be termed as exorbitant. 22. The submission of the learned counsel appearing on behalf of the respondent no.1 that on account of the said agreement dated 1/8/1998, the claimant should be held to have been paid compensation in full and final settlement of the claim is not at all acceptable. As has been rightly submitted by Mr. Lobo, the learned counsel for the claimant, statutory right cannot be defeated by way of an agreement. The said agreement speaks about payment of Rs. 2,300/-on account of injury and further amount to get the scooter repaired. Admittedly, the said amount of Rs. 2,300/- has been deducted from the total compensation and no amount has been awarded towards damages to the scooter. 23. In view of all that is discussed above, the impugned judgment and award is in accordance with the settled principles of law and no interference of whatsoever nature is warranted. 24. There is no merit in the appeal which is, therefore, dismissed. 23. In view of all that is discussed above, the impugned judgment and award is in accordance with the settled principles of law and no interference of whatsoever nature is warranted. 24. There is no merit in the appeal which is, therefore, dismissed. However, no order as to costs in the facts and circumstances of the case. 25. The appeal stands disposed of accordingly.